Citation Nr: 0103705
Decision Date: 02/07/01 Archive Date: 02/15/01
DOCKET NO. 99-03 729A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Washington,
DC
THE ISSUES
1. Entitlement to service connection for muscle and joint
pain, and fatigue, claimed as due to undiagnosed illness.
2. Entitlement to service connection for sleep apnea.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
William W. Berg, Counsel
INTRODUCTION
The veteran served on active duty from January to August
1991, which included service in the Persian Gulf War from
February to June 1991.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in Washington, DC.
In August 2000, the veteran gave sworn testimony before the
undersigned Board member. A transcript of that hearing is of
record.
The Board notes that in his substantive appeal received in
March 1999, the veteran withdrew his appeal on the issues of
entitlement to increased ratings for post-traumatic stress
disorder and for right ear hearing loss. He stated that he
was satisfied with the evaluations currently assigned.
Accordingly, the Board's review is limited to those issues on
the cover page of this decision. See 38 C.F.R. § 20.204(b)
(2000).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. The diagnosis of fibromyalgia has not been confirmed.
3. The veteran exhibits objective indications of chronic
disability manifested by joint and muscle pain with fatigue,
due to undiagnosed illness, and initially shown to be present
in service.
3. It is probable that the veteran acquired sleep apnea
during service.
CONCLUSIONS OF LAW
1. The veteran has chronic muscle and joint pain with
fatigue as a result of undiagnosed illness. 38 U.S.C.A.
§§ 1110, 1117 (West Supp. 2000); Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-
99 (to be codified as amended at 38 U.S.C. § 5107(b));
38 C.F.R. §§ 3.102, 3.317 (2000).
2. Sleep apnea was incurred in service. 38 U.S.C.A. § 1110
(West Supp. 2000); Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-99 (to be
codified as amended at 38 U.S.C. § 5107(b)); 38 C.F.R. §§
3.102, 3.303 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The service medical records are negative for complaints of
findings of sleep apnea. In May 1991, the veteran was seen
at a service clinic for a complaint of chest pain of 12
hours' duration. Chest wall pain was assessed but was not
attributed to any specific disorder. The service medical
records are otherwise negative for complaints or findings of
muscle or joint pain or of associated fatigue. In addition,
his Quadrennial Examination for the Army National Guard in
August 1990 was negative for any pertinent complaints or
findings.
The veteran complained of injuries to the right elbow and
ankle when examined by VA in March 1993. He was described as
a vague historian. X-rays of the right elbow and ankle were
normal. The pertinent diagnoses were status post strain of
the right ankle, by history, and status post trauma of the
right elbow, by history. Complaints or findings of sleep
apnea were not noted.
A VA Persian Gulf registry examination in December 1994
included a diagnosis of history of myalgias and fatigue.
The veteran was admitted to the VA Medical Center (VAMC),
Washington, D.C., in April 1995 with complaints that included
chronic fatigue and transient myalgias since the war. During
hospitalization, he complained of generalized pain all over,
sometimes relieved by Tylenol. A rheumatology consultation
found no evidence of autoimmune disease, but there was slight
patellofemoral disease. There was also the "slight
possibility" that the veteran might have fibromyalgia, for
which he was started on Elavil. The diagnoses on discharge
from the hospital included fibromyalgia and patellofemoral
disease.
In October 1995, the veteran was hospitalized by VA for a
sleep study. It was reported that he obtained three to four
hours of sleep a night, which was not satisfying sleep. He
said that he occasionally experienced shortness of breath at
night and had morning headaches. It was further reported
that he had been diagnosed with Persian Gulf War syndrome in
1991 and that since that time period had developed sleep
disturbances. The pertinent diagnosis was sleep apnea.
When the veteran was evaluated in the Gulf War Health Center
of the Walter Reed Army Medical Center in November 1995, his
complaints included fatigue and multiple joint and muscle
aches since Operation Desert Storm. He also complained of
awakening two to three times a night with nightmares,
nightsweats, and increased snoring. It was noted that he was
being worked up by VA for sleep apnea and that he had
indicated that he had been diagnosed by VA with fibromyalgia.
The assessment included possible fibromyalgia, and probable
obstructive sleep apnea (OSA) with resultant fatigue and
joint pains.
On VA examination in June 1996, the veteran complained of
chronic fatigue since his return from the Persian Gulf and of
chronic joint pain mostly of his knees, elbows, shoulders and
hips. He reported that he had undergone bone scans at Walter
Reed Army Medical Center and was told that he had
degenerative joint disease. He also complained of chronic
muscle pain, for which he took Elavil and Trazodone. He also
indicated that an examination for the Persian Gulf registry
had included laboratory studies and a chest X-ray that were
normal. X-rays of the hips were normal. The impressions
were history of chronic fatigue; arthralgias with
degenerative joint disease of the knees and ankles to be
ruled out; and fibromyalgia "on treatment".
A VA general medical examination in July 1997 reflected the
veteran's history of joint pain since about 1991. It was
reported that the veteran complained of pain in his ankles,
knees, hips, elbows, shoulders and low back. The primary
joints involved at the time of the examination were the
knees, hips, shoulders and low back. It was further reported
that he had a diagnosis of degenerative changes in his knees
and hips. The veteran also said with respect to his muscles
that he had "hurt all over my body" since 1991. The
veteran said that he had been diagnosed with "chronic pain-
fibromyalgia" in 1994. On examination, the veteran claimed
tenderness to palpation over all muscles. The pertinent
diagnoses were diffuse joint pains, diagnosis of degenerative
changes in the knees and hips; diffuse muscle pain and
tenderness to palpation, diagnosis of fibromyalgia; and
exogenous obesity.
On VA respiratory examination in November 1997, the diagnoses
were persistent shortness of breath since 1991 without
diagnosis to date and no shortness of breath on physical
examination; and exogenous obesity. (Service connection for
shortness of breath due to an undiagnosed illness was denied
by a rating decision dated in March 1998.)
In a letter dated in January 1998, the veteran's treating
neurologist at the VAMC Washington stated that the veteran
was being followed in the sleep clinic for sleep apnea and
that he was on continuous positive airway pressure (CPAP) for
the disorder. The physician said that the veteran presented
with fatigue upon returning from the Persian Gulf and was
evaluated for that and other symptoms. He said that the
sleep apnea exists and that it was likely that his sleep
apnea was present in the gulf. The physician further stated
that "the records suggest that he has been symptomatic since
his return from the gulf again suggesting that it is quite
possibly related to his service in the gulf." Received in
January 1998 with the physician's statement was the report of
a polysomnogram from the Sleep Laboratory at the VAMC
Washington showing that the veteran had mild sleep apnea.
When seen in the VA orthopedic clinic in May 1998,
fibromyalgia was suspected, and a rheumatology consultation
was suggested. The examiner commented that the findings were
currently inexplicable.
A VA rheumatology consultation in July 1998 reflects the
veteran's complaints of multiple myalgias and arthralgias
since the Gulf War that included the shoulder, back, hip,
thigh, knee, ankle, and neck. The assessment was
fibromyalgia symptoms consistent with Gulf War Syndrome. In
a letter dated in August 1998, the chief of the rheumatology
section at VAMC Washington, who had examined the veteran the
previous month, stated that the veteran's clinical picture
was that of Persian Gulf Syndrome with manifestations of
fibromyalgia and depression.
In a letter dated in June 1999, L. H. Fenton, M.D., reported
that the veteran had been under his care for many years for
the treatment of various illnesses. It was reported that in
September 1992, he was seen for complaints of multiple joint
pain, depression, fatigue and insomnia. He said that he had
been having these problems since returning from the Persian
Gulf. When last examined by Dr. Fenton in May 1999, the
veteran's symptoms included chronic multiple joint and muscle
pain, chronic fatigue, and weakness. The veteran also
reported that he had problems sleeping, although he
acknowledged that he had used and abused alcohol and other
substances. However, it seemed that all of his medical
problems were manifested after his return from the Persian
Gulf War. After reviewing some of the documents that the
veteran brought with him, Dr. Fenton stated that in his
treatment of the veteran over the years, his current medical
problems were not present before 1991. Dr. Fenton was of the
opinion that the veteran was suffering from, among other
things, fibromyalgia, degenerative joint disease, and chronic
fatigue, which the physician felt were all residual effects
of the veteran's service in the Gulf War.
In July 1999, the veteran underwent an extensive evaluation
in the VA Pain Clinic by a specialist in neuromuscular
disorders. The veteran's chief complaint was of chronic pain
in the shoulders, arms, elbows, entire back, hips, back of
thighs, knees, calves, and ankles. The examination was felt
to be normal. The examiner reported that the veteran
believed that he had "Persian Gulf Syndrome" and that,
indeed, he met most of the criteria. The examiner commented
that the veteran's diffuse tenderness on examination
suggested an element of fibromyalgia. He also had other
maladies, including sleep apnea.
However, the veteran underwent an orthopedic evaluation by H.
J. Jackson, Jr., M.D., in April 2000. Following a diagnostic
work-up, Dr. Jackson was of the opinion that the veteran did
not have, and never had fibromyalgia; rather, he suffered
from muscle and joint pain as well as fatigue that was still
undiagnosed, despite the diagnosis of fibromyalgia rendered
by VA in 1995. Dr. Jackson stated that the diagnosis of
fibromyalgia is the clinical finding of tendon-muscle points
called trigger areas that were absent in the veteran's case.
Dr. Jackson said that as an orthopedic specialist, he was of
the opinion that the diagnosis of fibromyalgia was inaccurate
by orthopedic standards. Dr. Jackson indicated that he had
reviewed the record.
The veteran testified in August 2000 that his duties in
Southwest Asia required him to travel all over the Persian
Gulf including Bahrain. He reported that he was not treated
for muscle or joint pain, or for sleep apnea, during service.
He said that he had undergone two sleep studies at VAMC
Washington. He stated that the chief neurologist at that
facility had attributed his sleep apnea to service. The
veteran testified that he assumed that his sleep apnea began
in service and that he did not know exactly what he had until
he got to a doctor. He said that he had been told that he
snored very loudly, and he indicated that he did not get
restful sleep. He said that he was told that it sounded as
though he were gagging. He stated that he awakened several
times during the night. He testified that he experienced
this problem in service but that he did not know what it was
called. He said that a fellow officer who slept in the same
barracks told him that "I heard you way over here." The
veteran said that he had the problem following service but
that, because of other problems, he did not seek medical
treatment for his sleep apnea right away. He said that for a
time, he thought that the problem might be in his head but
that he continued to experience the same problem.
The veteran also testified that he taught barbering prior to
service and that when he returned from service, his
employment involved mental more than physical activity. He
stated that he was being treated both by VA and privately for
his muscle and joint pain. He was now taking Feldene for his
muscle and joint pain. He saw each of his physicians about
once a month for his muscle and joint pain. The veteran
testified that he believed that his muscle and joint pain
began in about April 1991. He knew that he was in pain,
although he did not know the reason for his problem. He also
said that he felt tired but thought that that was the way he
was supposed to feel because there was a war on. He said
that he continued to feel very tired once he returned to the
United States.
Analysis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110. Service connection may also be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
§ 3.303(d).
Service connection may also be established for chronic
disability resulting from undiagnosed illness which became
manifest either during active service in the Southwest Asia
theater of operations during the Persian Gulf War, or to a
degree of 10 percent or more not later than December 31,
2001. To fulfill the requirement of chronicity, the illness
must have persisted for a period of six months. 38 C.F.R.
§ 3.317. These disabilities can be established by objective
indications. Objective indications of chronic disability are
described as either objective medical evidence perceptible to
a physician or other, non-medical indicators that are capable
of independent verification. 38 C.F.R. § 3.317.
The record shows that the veteran served in the Persian Gulf
War and is a "Persian Gulf veteran" as that term is defined
by law for purposes of entitlement to compensation benefits
for disability due to undiagnosed illness. 38 U.S.C.A. §
1117(e); 38 C.F.R. § 3.317(d). However, service connection
may only be established for chronic disability resulting from
undiagnosed illness that by history, physical examination,
and laboratory tests cannot be attributed to any known
clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii).
Regarding the first issue on appeal, the Board notes that the
veteran initially claimed service connection for muscle and
joint pain and fatigue due to an undiagnosed illness based on
the veteran's service in the Persian Gulf War. However, the
RO has denied the claim on the basis that the veteran's
persistent muscle and joint pain, and fatigue, have been
attributed by clinicians to fibromyalgia, which is a known
clinical diagnosis listed in the rating schedule. See
38 C.F.R. § 4.71a, Diagnostic Code 5024 (2000). Thus, if the
veteran's complaints can be attributed to fibromyalgia, there
is no legal entitlement to service connection for muscle and
joint pain and fatigue due to an undiagnosed illness. See
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), appeal
dismissed, 56 F.3d 79 (Fed. Cir. 1995) (table).
The Board finds, however,that Dr. Jackson has persuasively
argued, based on a review of the record, that the diagnosis
of fibromyalgia is incorrect and that the veteran's muscle
and joint pain, as well as fatigue, remains undiagnosed
despite the diagnosis by VA in April 1995. The record shows
that a diagnosis of polymyalgia rheumatica has also been
entertained and that the diagnosis of fibromyalgia appears to
have been entered as a working diagnosis for purposes of
treatment. However, a definitive diagnosis necessary to
exclude the veteran's symptoms from consideration under the
provisions of law providing compensation for veterans of the
Gulf War is not shown. Even the VA hospital report in April
1995, when the diagnosis of fibromyalgia was supposedly
established, indicates that there was only the slight
possibility that the veteran had that disorder, despite its
diagnosis on discharge. Apart from Dr. Jackson's skepticism,
there is the evidence of the chief of the rheumatology
section at the VAMC Washington, who indicated that the
veteran's clinical picture was that of Persian Gulf Syndrome
with manifestations of fibromyalgia and depression. Although
Dr. Fenton indicated in June 1999 that the veteran had
fibromyalgia, there is no indication that he is a specialist
in orthopedics or rheumatology; rather, his practice appears
to involve neurology and pulmonary disease. Under these
circumstances, the Board concludes that the diagnosis of
fibromyalgia has not been definitively confirmed.
On the other hand, the record reflects a lengthy history of
complaints and objective findings of muscle and joint pain
that have been attributed by a number of examiners to Persian
Gulf Syndrome. The record shows that the veteran did not
have any such complaints prior to his deployment to the
Persian Gulf and that his subsequent symptoms, which have
persisted, have been associated with his service there. In
these circumstances, service connection for chronic
disability manifested by muscle and joint pain with fatigue
due to an undiagnosed illness is warranted. Chronic fatigue
syndrome is also a know clinical diagnosis that is recognized
in the rating schedule. See 38 C.F.R. § 4.88b, Diagnostic
Code 6354 (2000). However, the fatigue noted in the evidence
of record in this case seems to be part of the symptom
complex associated with his muscle and joint pain, and
accompanying weakness, and not a separate ratable entity as
contemplated by Diagnostic Code 6354.
With respect to the veteran's claim for service connection
for sleep apnea, there is no objective evidence of this
disorder during service. Rather, there is the veteran's
testimony that he had symptoms during his service in the
Persian Gulf that were later identified as sleep apnea.
There is, moreover, the opinion of his treating VA
neurologist, who in January 1998 stated that the veteran had
sleep apnea, that it was present while he was in the Persian
Gulf, and it had been symptomatic since his return from the
Persian Gulf. 38 C.F.R. § 3.303. Under these circumstances,
the veteran is entitled to the benefit of the doubt. See
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 4, 114 Stat. 2096, 2098-99 (to be codified as amended at
38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. It follows that the
claim for service connection for sleep apnea must be granted.
ORDER
Service connection for chronic joint and muscle pain with
fatigue, due to undiagnosed illness, is granted.
Service connection for sleep apnea is granted.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals